(Appeal from the decision of the Court of Appeal (Mukasa- Kikonyogo
DCJ, Okello, &Mpagi-Bahigeine JJ.A.) at Kampala, dated 20th
December 2001 in Criminal Appeal No. 79 of 2000).

JUDGMENT OF THE COURT

This is a second appeal by Oryem Richard and Nayebale Peter, who were
convicted by the High Court at Masaka, on 3rd October 2000, for
simple robbery, and were each sentenced to imprisonment for 10 years, corporal
punishment of 10 strokes, and to
other statutory orders. Their appeal to the
Court of Appeal was dismissed on 20th December 2001.

The
robbery for which the two appellants were convicted, occurred on 22nd August
1998, at night. The assailants forcefully broke into
the house of Mutebi Ahmed,
and while threatening to use violence, stole a motorcycle, a radio cassette, a
jerry can of petrol and
shs.100,000/-. The only eyewitnesses to the robbery,
Mutebi, PWl, and Nambirige, PW3, were not able to recognise the robbers. The
convictions of the appellants were based on different circumstantial evidence
against each. The evidence against Oryem was in three
parts. First, on 24.8.98,
two days after the robbery, police officers, acting on a tip-off, found him
attempting to sell the stolen
motorcycle at a garage in Nyendo, in Masaka
Municipality. He was arrested and taken into police custody. Secondly, at Nyendo
police
station Oryem admitted that he had taken part in the robbery, and then he
led the police to his home where they recovered the stolen
radio cassette.
Thirdly, on 25.8.98, in a charge and caution statement made to, and recorded by
D/AIP Samuel Kato, PW2, Oryem confessed
that he had carried out the robbery with
Nayebale Peter. As against Nayebale, there were two pieces of evidence. First, a
neighbour,
Namakula Josephine, PW5, testified that early on 23.8.98, the morning
after the robbery, she saw Nayebale and another person, riding
a motorcycle
without number plates, which looked like the stolen motorcycle. She also
testified that Nayebale had the motorcycle
for two days, and that she had never
seen him with a motorcycle before. The second piece of evidence, was that Oryem
stated in his
confession, that Nayebale participated in the robbery.

In the courts below, the appellants were jointly represented, but in this
Court, two counsel were instructed, and ultimately two sets
of grounds of appeal
against conviction were pursued. We shall first consider the grounds pertaining
to conviction; and end with
consideration of the only ground relating to
sentence. Oryem's appeal against conviction was on three grounds, but at the
hearing
of the appeal, Mr Ddamulira-Muguluma, his learned counsel, abandoned the
third ground. The remaining two are that:

"The learned Justices of Appeal erred -1. when they
upheld the learned trial judge's decision to admit the first appellant's charge
and caution statement.

2. when they upheld the decision of the High Court that the appellants
jointly participated in the robbery.

On the first ground learned counsel submitted three reasons, why the charge
and caution statement ought not to have been admitted
in evidence, namely that
-

•

the statement was
obtained through torture;

•

it was
recorded in English without asking the appellant the language he preferred to
use; and

•

the police officer who
recorded it had first participated in the investigation of the
case;

He contended that the courts below had not
properly evaluated the evidence regarding the torture of the appellant. He
invited this
Court to hold that the statement was not voluntary. In the
alternative, counsel submitted that the offence described in the statement
was
not robbery but burglary. On the second ground, counsel submitted that apart
from the inadmissible confession, there was no reliable
evidence to link the
appellant with the robbery.

Mr. Elubu, Principal State Attorney, submitted that the courts below had
properly considered the issues regarding the charge and caution
statement and
had rightly concluded that it was admissible and credible. There was no evidence
that Oryem had been tortured. He made
the statement voluntarily, and agreed with
PW2 to use the English language, which both could speak. Mr. Elubu submitted
that Oryem
and his mother, DW2, had lied when they alleged that the police
officer who recorded the statement participated in the investigation
of the
case. He pointed to contradictions in their evidence to show that they had lied.
On ground 2, the learned Principal State
Attorney submitted that, the evidence
that Oryem was in possession of property stolen during the robbery, less than
two days after
the robbery, was sufficient proof that he participated in the
robbery. His confession confirmed his guilt.

In the Court of Appeal, counsel for the appellants concentrated his criticism
of the charge and caution statement, mainly on the inconsistencies
between its
contents and the testimony of PW3. He attacked the admission of the statement in
evidence, only on the ground that Oryem
had been tortured. On that issue, the
Court of Appeal said in its judgment -"The claim of injuries allegedly
sustained by the first appellant is patently false as the signs and scars could
not have disappeared
within a matter of two days. He was arrested on 24.8.1998,
the statement was made on 25.8.1998 and he was medically examined on 27.8.1998.
However, admissibility of a statement is a matter for the court. The allegation
of torture by the first appellant put the Judge upon
inquiry. After weighing all
the denials, allegations of torture and probabilities, the learned Judge found
it to have been made voluntarily.
We agree with him." We should add
that, notwithstanding lack of clarity in Oryem's evidence on the issue, the
learned trial judge treated the admissibility
of the statement with commendable
care. He carefully considered and ruled out what appeared to be, two alternative
pleas in Oryem's
evidence. He held that if Oryem had been tortured on arrest,
then any threat caused by such torture, must have been removed by the
lapse of
three days before he made the statement, coupled with the fact, confirmed by
Oryem himself, that D/AIP Kato who recorded
the statement, did not torture or
threaten him, and was a close family friend. Secondly, he considered Oryem's
claim that the statement
was not his, but had been simply given to him to sign.
After evaluating the evidence and the manner it was given, he concluded that
Oryem had made the statement and D/AIP Kato had recorded it as it was made. We
are satisfied that, in upholding the decision of the
learned trial judge to
admit the charge and caution statement in evidence, the Court of Appeal did not
err. Oryem's first ground
of appeal therefore fails.

With regard to the second ground, we find that the evidence against him is
overwhelming. In the charge and caution statement, Oryem
made a full confession
to the robbery. Although at the trial he retracted it in one breath, and
repudiated it in another, a court
upon finding corroboration, or upon
appropriately cautioning itself against the danger of relying on a retracted
and/or repudiated
confession, could convict on it. Furthermore, Oryem was in
possession of the stolen motorcycle and radio cassette, less than 48 hours
after
the robbery. He was attempting to sell the motorcycle without its registration
book or number plates. This was a classic case
for the application of the
doctrine of "possession of recently stolen goods". Any doubt as to whether he
was the thief or a receiver,
was resolved by his confession that he participated
in the robbery. As for the submission by learned counsel for Oryem, that the
evidence adduced disclosed the offence of burglary rather than robbery, the
short answer is that there was sufficient evidence of
threatened violence.
Accordingly, Oryem's second ground of appeal also fails.

Nayebale Peter's
appeal was on the grounds that the learned Justices of Appeal -

1.

made an
error of law and an error of law mixed with fact to have used the charge and
caution statement as evidence against
him;

2.

erred in
law and fact in confirming the conviction of the appellant without a thorough
re-evaluation of the evidence on
record."

Mr. Kunya, learned counsel for Nayebale, submitted that the conviction was
wrongly based on Oryem's confession. He pointed out that
Nayebale had been
arrested for the offence of defilement, and came to be charged with robbery only
because he was subsequently implicated
in Oryem's confession. Learned counsel
submitted further that the Court of Appeal erred in holding that the evidence of
Namakula
Josephine, PW5, was the basis of the conviction. He argued forcefully,
that the evidence of that witness contained inconsistencies
and uncertainties,
which rendered it unreliable. Her allegation that Nayebale had the motorcycle
for two days, was not consistent
with her other evidence, that she saw him on
the motorcycle only once, in the morning of the day on which he was arrested.
According
to him, the witness was even not certain if the motorcycle she saw him
riding, was the stolen motorcycle produced and identified
in court. He contended
that in the circumstances, the doctrine of possession of recently stolen goods
was not applicable.

In reply, the learned Principal State Attorney
submitted that the evidence of PW5 proved that Nayebale was in possession of the
stolen
motorcycle in the morning after the robbery. Any doubt in the evidence of
that witness was dispelled by Oryem's confession. He relied
on Gopa and
others v R (1953) 20 EACA 318.

We are constrained to observe, with
concern, that the handling of the case against Nayebale on appeal was not
entirely without fault.
In evaluating the evidence in its judgment, the Court of
Appeal started with a misdirection, and then considered the cases against
both
appellants concurrently, without indicating that each case was independently
proved beyond reasonable doubt. The misdirection
was in respect of the law
applicable to Oryem's confession, in relation to the case against Nayebale.
After upholding the trial court's
decision that Oryem made the confession
voluntarily, the learned Justices of Appeal reviewed the contents of the
statement, Exh.P2,
and upon concluding that it was true, held that "the
situation" was covered by section 29A of the Evidence Act. With due respect,
this conclusion was a misdirection. Section 29A provides -"Notwithstanding
the provisions of sections 24 and 25 of this Act, when any fact is deposed to as
discovered in consequence of information received from a person accused of
any offence, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered,
may be proved."(emphasis is added)In the instant
case, there was no fact deposed to as "discovered in consequence of
information received" from Oryem's confession in Exh.P2. That confession was
recorded on 27.8.98, three days after the motorcycle and radio cassette had
been
recovered. The only statement which falls within the ambit of section 29A of the
Evidence Act, being information from an accused
person, in consequence of which
the stolen radio cassette, was discovered, is what Oryem said to Cpl.
Mfitundinda, PW7, at Nyendo
Police Post, after the arrest. The pertinent
information he gave then, was simply the admission that he participated in the
robbery.
It is that which led the police to visit his home, and which distinctly
relates to the recovery of the radio cassette. Although Exh.P2
was not within
the ambit of section 29A, however, since it was a confession by an accused
person, it was lawful under section 28
of the Evidence Act, to consider it
against Nayebale, a co-accused. For that reason, we are satisfied that the
misdirection did not
unduly prejudice Nayebale.

Mr. Kunya's main
criticism that the conviction of Nayebale was wrongly based on Oryem's
confession seems to arise from the following
passages in the judgments of the
lower courts. The learned trial judge said of the evidence he reviewed
-"After putting all the above into account I find that the
confessional statement made by A1 was truthful and that A2 participated
in the
robbery in question and was seen with PW1's motorcycle on the 23rd
day of August 1998 by PW5.1 therefore hold that the prosecution has succeeded in
putting him at the scene of crime and has proved
beyond reasonable doubt that he
participated in the crime."

In its judgment, the Court of Appeal
said -

"We, therefore, find that the confession having been proved
to be true against the first appellant it can safely be used to lend buoyancy
to
the evidence of Josephine Namakula, PW5 to base on a conviction against the
second appellant. Josephine Namakula testified having
seen the second appellant
with a numberless red motorcycle very early in the morning of 23.8.98. The first
appellant stated that
they drove the motorcycle to the home of the second
appellant first before he returned to his home. It was there that they plucked
off its number plate. There is therefore overwhelming evidence in the
confession against both appellants.

However even without it, the mere recovery of the recently stolen
property in possession of the first appellant, only two days after
the robbery
was enough to base on a conviction. Gidoga Alex No. 19105 PC, PW4, arrested the
first appellant on 24.8.98 with the motorcycle
He identified it in
court."

If the two passages are read in isolation, it is plausible to infer that
Oryem's confession was the basis of Nayebale's conviction,
and that Namakula's
evidence was only taken as supplementary to the confession. It is trite law,
that in a case where two or more
accused persons are jointly tried for the same
offence, a confession by one implicating another, cannot be used as a basis for
the
conviction of that other. Under section 28 of the Evidence Act, it may only
be used to supplement substantial evidence against the
co-accused. Such
confession is even not to be equated to accomplice evidence, as implied by the
Court of Appeal in the instant case.
See Gopa and others vs. R (supra),
and Ezra Kyabanamaizi and others v R (1962) EA 309. Accomplice evidence,
which is adequately corroborated, can be a lawful basis for a conviction. A
confession, such
as Exh.P2 in the instant case, cannot be. Indeed, it is a weak
form of evidence, because it is made in absence of the implicated
co-accused,
and its veracity is not tested through cross-examination.

We have
carefully examined both judgments. We think that neither court based the
conviction of Nayebale on Oryem's confession. The
learned trial judge did not
address himself, or the assessors, on the import of section 28 of the Evidence
Act. However, he placed
much reliance on the evidence of Namakula, (PW5),
regarding Nayebale's possession of the motorcycle in the morning of 23.8.98,
highlighting
where it tallied with the confession. He had this to say about the
witness herself -"PW5 is not said to have any grudges with A2 and she
gave her evidence in a straight forward manner and withstood rigorous
cross-examination.
She impressed me as truthful..." The Court of
Appeal on the other hand, addressed itself properly on the extent to which
Oryem's confession could be used against Nayebale,
citing not only section 28 of
the Evidence Act, but also Ezra Kyabanamaizi's case (supra) and Gopa's
case (supra). We think that if the learned Justices of Appeal had adverted
to the point, they would have expressly applied the doctrine
of recent
possession to Namakula's evidence, as they did to that of PW4. In upholding
Nayebale's conviction, they must have had in
mind, both Namakula's evidence and
that doctrine. In the circumstances, we find that the Court of Appeal did not
err either in upholding
the decision to admit Oryem's confession as evidence
against Nayebale, or in the way it used it against him. Nayebale's first ground
of appeal accordingly fails. We also find no substance in his second ground, as
the learned Justices of Appeal thoroughly re-evaluated
the evidence against him
before upholding his conviction. It also fails.

The final ground of appeal is that -

"The learned Justices of Appeal erred in law in upholding the illegal
sentence of corporal punishment, passed by the trial judge."

Learned counsel for Oryem, submitted that the sentence of corporal punishment
is illegal because it contravenes Article 24 of the
Constitution. Though the
submission was made on behalf of only Oryem, it obviously affects both
appellants, since the sentence was
imposed on both. The learned Principal State
Attorney did not oppose this ground. He conceded that corporal punishment is
unconstitutional.

The sentence of corporal punishment was imposed
pursuant to the Penal Code Act, which provides in mandatory terms under section
274
A, that a person sentenced to imprisonment for robbery shall in addition be
sentenced to corporal punishment. On the other hand,
the Constitution provides
in Article 24 that -"No person shall be subjected to any form of torture,
cruel, inhuman or degrading treatment or punishment." In an earlier
appeal, Kyamanywa Simon v Uganda, Criminal Appeal No.16 of 1999,
(SC)(unreported), the same ground of appeal was raised. On 7th
April 2000, this Court, by majority, held that a question as to the
interpretation of the Constitution had arisen, and decided to
refer the question
to the Constitutional Court. The question, so far as is material, was framed
thus:"On 16th March 1999, the Court of Appeal... convicted
the appellant of robbery ...and sentenced him to imprisonment for six years and
to six
strokes of the cane... The sentence of six strokes of the cane was
imposed under section 274 A of the Penal Code Act. Is the sentence
ofsix strokes of the cane inconsistent with or
does it contravene the provisions of article 24 ofthe
Constitution?"

T

In a ruling dated 14 December 2001, in Constitutional Reference No.10 of
2000, the Constitutional Court, by majority of three to two,
held in answer to
the question, that "the sentence ofsix strokes ofthe cane
is inconsistent with article 24 ofthe Constitution." Kyamanywa's
appeal, which should have been disposed of in accordance with that decision, was
overtaken by events. Kyamanywa was granted
pardon by the President, before the
process of the reference was concluded. However, the decision on the reference
is of general
application. In the course of making the reference, this Court
observed -"In case the decision of the Constitutional Court on the
question referred to it is not appealed, then such a decision would stand
as the
law until it is overturned or upheld on appeal by the appellate Constitutional
Court in another case in the future." The decision of the
Constitutional Court on reference, has not been appealed, What the court said
about the six strokes in Kyamanywa's
case, applies to the 10 strokes in the
instant case. This ground of appeal therefore succeeds. In the result we dismiss
the appellants'
appeal against their convictions. We allow the appeal against
the sentence of corporal punishment, which we hereby set aside. The
rest of the
sentence imposed on each of the appellants is confirmed.

Before taking leave of this case, we are constrained to express our agreement
with the observation of the Court of Appeal that the
learned trial judge did not
give due regard to the evidence on the use of the gun. Where a witness
testifies, as PWl did, that during
a robbery, he saw the assailant pull out a
gun, point it at him and fire a bullet which missed him but hit the wall, there
is sufficient
proof of use of the gun, unless that evidence is otherwise
discredited. To demand that if the gun is not produced, the witness should
describe it "as carefully and as exactly as possible" is to set
the standard of proof too high, and unattainable in the average cases of
robbery. The same applies to the suggestion implied
by the learned trial judge
that it should have been proved that the gunshot heard by the witness was from
the gun he saw with the
assailant.